India’s Supreme Court and the media

Let CJ Kapadia not go down in history for undertaking an exercise which can be detrimental to the rights of the press.

The media owes a lot to the Supreme Court of India for the freedom it enjoys. But when the apex court tries to meddle in its professional work, it arouses doubts.

I have great respect for Indian Chief Justice SH Kapadia. His integrity is beyond reproach and I have often mentioned his name for the appointment as India’s first Lokpal. But lately, I have been disappointed over the unrelenting way in which he is trying to ram down guidelines to instruct the press on reporting the proceedings of the Supreme Court. It seems that he is determined to impose the guidelines even though they violate the fundamental right under Article 19(1) of the Constitution on freedom of the press.

That the media has not maintained the standards to which it adhered for years is something with which many journalists agree. But the media itself must sort this problem out. It does not mean that the court should interfere. Reporting on court proceedings is an arduous assignment given to experienced hands and just as all judges in the judiciary are not of the same calibre, journalism, too, experiences the same limitation.

The harm that the judiciary can do is worse than the media is capable of doing. A wrong judgment plays havoc compared with the outcomes of an incorrect news story. Incorrect reporting can be rectified unlike a wrong judgment, which stays until a superior court or a bigger bench changes it. The apex court is not infallible and has made mistakes in the past. Why pick on the media? The judiciary and the media have an important role to play — both have jointly thwarted assaults on freedom, essential to sustain the spirit of democratic polity.

Journalists found guilty of intentional or motivated misreporting of court proceedings can be referred to the Press Council. The Editors Guild of India has devised a code of ethics and has often discussed self-regulation. While sometimes there are aberrations, this does not mean that the Supreme Court should clamp down on the right to know; the sword of contempt of court is always hanging over the heads of journalists while reporting legal cases.

Senior Counsel Anil Devan is right when he says: “Article 19(1)(a) includes the right to know and the right to be informed. Media (print and electronic) are the eyes and ears of the citizen and unless media freedom to report court proceedings is protected, the right to know is impaired.” If the court still insists on guidelines, it must approach parliament which alone can legislate on such matters.

Parliament, too, would have to ensure that it does not whittle down the freedom guaranteed to the press under the Constitution. India’s first prime minister, Jawaharlal Nehru, was unhappy over incorrect or speculative reports that appeared in the press. His viewpoint, as expressed at the All India Newspapers Editors’ Conference on December 3, 1950, was: “I would have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.” The Supreme Court itself has given many judgments to uphold the media’s right to say.

Chief Justice Kapadia has said that it is not the question of freedom of the media but that if the media is used to destroy someone’s reputation, what is the remedy? He is talking about the motivated reporting which none in the media upholds. Yet, the media trial he is apprehending has been able to get justice in the case of Jessica Lal’s murder and earlier, the Uphaar cinema house tragedy which killed 59 people in New Delhi in 1997. Similarly, the Commonwealth Games scams would not have come to light but for the media’s meticulous investigation. There can be no rules or guidelines in such cases. Each case is different and as the time passes, media persons will become more experienced and the judges less sensitive. Let Chief Justice Kapadia not go down in history for undertaking an exercise which can be detrimental to the rights of the press.

Published in The Express Tribune, May 7^th, 2012.